Thursday, 3 October 2013

A Bleak Future for Justice

I am not a member of the legal profession nor have I ever had the need to use a lawyer in court, but I have been closely following recent developments.  As a citizen of this country I consider that I have as big a stake in the outcome of the changes to our criminal justice system as anyone else; and I believe, as I’m sure most people do, that a robust criminal justice system (CJS) available to all regardless of financial situation, position in society, race or religion is the very bedrock of a civilised country. 

I know that on the face of things this may be a subject that does not directly affect most law abiding people, some I know believe that Legal Aid is predominantly something given to criminals to defend themselves against a justifiable prosecution.  It should be remembered that any one of us can be vulnerable to arrest in many unforeseeable circumstances.  A driving accident where someone has been injured or killed; or perhaps walking home from the cinema a group of drunks spill out of a pub and start a fight in which you defend yourself and once again a person is hurt; maybe a neighbour falsely accusing you of damaging his property; the possibilities are almost limitless.  The need for a lawyer begins from the time of first arrest and what happens over the few hours following your arrest may determine in the first instance whether you are charged and if you are charged whether you are found guilty in any subsequent prosecution.  The advice and support of an independent fully qualified lawyer at that stage is crucial.  Many lawyers say that up to 50% of times they are called to advise a client at a police station the police do not proceed with a charge; a very high percentage of those charged either never reach court or are found not guilty at an early stage.  It is difficult to imagine how many of these cases may turn out differently if the defendants are unrepresented or their advocate is either poorly qualified or not fully committed to proving the client’s innocence.  One must never lose sight of the fact that the police have no mandate nor incentive to gather evidence that might indicate innocence, only that which might point toward guilt. 

Over the centuries this country’s CJS has justifiably gained a reputation as being one of the best in the world; and until recently I have considered that whilst not being faultless ours was pretty good.  However, during the last decade or so a number of changes, made by various UK governments have nibbled away at the edges of the foundations of that system, but none so severe as those now being proposed by the current Justice Secretary.

In May Mr Grayling produced a consultation paper principally saying he wished to save £220m from the Legal Aid budget by cutting a minimum of 17.5% to lawyers.  He also proposed many things that were alien to the general understanding of what the British CJS was all about and quite understandably his proposals were universally  condemned from both within and outside the legal profession and attracted over 16,000 responses most of which were hostile.  Yet in spite of that hostility from the most qualified and experienced members of the profession, including members of his own legal team, Mr Grayling and his deputy, both without qualifications or experience in law, vigorously defended the original proposals using inaccurate statistics, spurious arguments and defamatory remarks about lawyers.  Mr Grayling claims that the bill for Legal Aid is £2b and spiralling out of control, when the actual cost of criminal defence is in fact less than £1b and falling and only £275m of that was for advocacy.  He says we have the most costly Legal Aid system in the world without mentioning that he makes his comparison with systems that are completely different and therefore not comparable.  He talks of lawyers earning huge sums of money and getting rich at the public’s expense, when the reality is that criminal defence work is the lowest paid area of law and many solicitor firms and barrister chambers working in criminal law are already going out of business even before any further cuts.  There have been no rises in Legal Aid fees since 1997 and indeed several severe cuts during the intervening time.  He fails to mention that the figures he quotes include VAT and expenses such expert witness fees, that lawyers are not paid for much of the time they spend preparing for a case, travelling time, time spent waiting for a case to be called in court or days wasted because a case was moved to another day or court; and he conveniently forgets the other costs of running a business such as support staff and rent or leases etc.

Why should most of us worry about cuts to lawyers pay you might ask?  Well, an initial consultation paper called for a reduction in the number of firms contracted to provide Legal Aid cover from the existing 1600 to a maximum of 400, and this would be achieved by a process called Price Competitive Tendering (PCT); in effect awarding the contracts to the lowest bidders.  There have been a number of big companies that have expressed an interest most of whom have no history in providing legal services, and some of which already hold huge government contracts and have been discredited for over-charging, incompetence, and fraud.  Other aspects of the proposals were that clients would lose the right to choose their solicitor and have one randomly allocated; and that lawyers would get a single fee regardless how long or complicated a case turned out to be.  The combined effect of these proposals would be that a client could be represented by a lawyer they have never met and perhaps have no confidence in, and one who has a financial incentive to persuade them to plead guilty to an offence they might not have committed.  I know that people may think, ‘well I would never plead guilty to something I hadn’t done’; but if you are being told by someone that, ‘if you plead not guilty and are later convicted you may end up in prison’, you may think differently.

So what do the government’s proposals for Legal Aid Joe Public, to you and me, the man and woman in the street?

Many people would be surprised to learn that the current cost of training to be a barrister is in the region £60,000 with no guarantee in criminal law that once qualified an income of over £16,000pa is a realistic prospect; and the situation for trainee solicitors is much the same.  If you reduce that salary by 17.5% (as proposed by our Justice Secretary) it doesn’t take a genius to realise that people will look elsewhere for a career. 

Not so widely known but at the same time as these proposals are made, the regulatory bodies that govern the legal profession the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) have been developing something called the Quality Assurance Scheme for Advocates (QASA).  The stated purpose is of QASA is to ‘assure the quality of all criminal advocates appearing in courts in England and Wales’.  Currently to act as an advocate solicitors, barristers and legal executives have to pass a whole raft of stringent examinations including written, oral, and practical in front of senior judge.  They have to present a portfolio of cases where they have acted as advocate under supervision and without intervention which have to be periodically renewed and reviewed.  Given this existing level of quality assurance, it is difficult to understand what is to be achieved by QASA if it is not to lower the standard and make it easier for people with a lower academic background and level of achievement to act as advocates. 

After his original proposals were roundly condemned almost everyone in the legal profession (including his own Attorney General) Grayling issued a second consultation paper but as far as I am able to see there is very little in the overall effect from the original.  Let me demonstrate what I mean, how I foresee things will pan out in a post-Grayling world and what the domino effect of making these changes will be. 

·         If you reduce the rates lawyers get paid to the rates proposed (i.e. a minimum reduction of 17.5%) most current providers will go to the wall or be subsumed into larger companies.

·         Because the rates paid to successful bidders for contracts will be so low the successful companies will be unlikely to be able to pay professional salaries to their advocates.  This will mean the most qualified and capable criminal advocates will look elsewhere for.  How does that pan out for client choice if the only choice you have is one huge company or another?

·         These changes combined with QASA will mean that the high standards currently imposed by the professional bodies will become a things of the past, allowing people with very few qualifications and little experience to act as advocates.

·         Removing the right to Legal Aid for many will, amongst other things, lead to people acting for themselves in court which will add to court time wastage, produce miscarriages of justice and possibly even perpetrators of crime cross-examining their victims in the witness box.  Lower standards of advocacy (It must be borne in mind that advocates prosecute as well as defend) will inevitably also lead to more miscarriages of justice which would have huge and undesirable consequences.  Innocent people being punished maybe even imprisoned for crimes they did not commit whilst the actual criminal is left to walk the streets.  Prosecutions failing, allowing the guilty to walk free.  Guilty people being given inappropriate sentences because mitigation wasn’t argued correctly.  Apart from the huge impact these have on the wrongly convicted and on the victims of crime, all of these can lead to appeals costing huge amounts of court time and therefore public money.  Because of new Legal Aid rules many people may not be entitled to a lawyer no matter how just their cause and may find themselves arguing an appeal armed only with a copy of ‘A Dummies Guide to Advocacy’.

·         Because profit margins will be too low, survivors of existing firms will find themselves on a very low bough and ripe for the picking by the likes of G4S, Eddie Stobart, the Co-op and Tesco (I kid you not, they have all expressed an interest)

·         By this time, if anybody needs a publicly funded lawyer they may find themselves with an 18 year-old grammar school leaver with an A Level in law and a certificate gained from a self-funded 12 hour weekend course in advocacy, employed on a zero hour contract with G4S, and being paid a flat rate for guilty plea or trial creating a financial incentive to persuade the client to plead guilty.  It won’t matter at that stage if you are an immigrant or a trafficked woman, neither will it matter if you suffer from mental health issues, from alcohol or drug addiction problems, nor will it matter if you’re a prisoner, or even if you’re just a bog standard member of the public; it won’t matter if you’re innocent or guilty, if you want to defend a prosecution or argue an appeal, your Buy One Get One Free lawyer is probably all you will be entitled to.  And as for a judicial review against an unjust government decision or a new law forget it, they will be only for the very wealthy.

·         This country’s judiciary is amongst the finest in the world, its criminal branch relies on the ablest of advocates, barristers or solicitors, taking their accumulated knowledge and judgment onto the bench.  Where will the criminal court judges of the future to be found?

Another proposal, possibly popular to some, is to deny access to Legal Aid for prisoners.  A recent interesting calculation from the Howard League for Prison Reform said that if every prisoner currently serving a life sentence served only one additional year in prison as a result of not having a lawyer to argue their case then for a saving of £4m from the Legal Aid bill, the cost to the taxpayer at today’s prices would be £480m.

I have written several times to my MP on this subject and to the Justice Secretary pleading with them to reconsider these proposals, the answers I get consist largely of the re-iteration of the same inaccurate statistics and discredited arguments whilst completely ignoring the consequences.  And yet, for somebody who seems to be rarely out of the public eye lately speaking on just about any subject you can think of, Grayling seems to be strangely absent when the subject of Legal Aid is mentioned.  He refused to meet with Michael Turner QC the then President of the CBA, and he failed to attend either of two debates in Westminster and left them to junior ministers who rather ineptly attempted to fight his corner 

Victims of these changes, apart from thousands of lawyers from all branches of the profession and many ordinary members of the public caught up in the law with no previous criminal record, will include trafficked women, victims of domestic abuse, and anybody falsely accused of a sexual offence even if there is little no evidence against them, to name but a few.

‘British justice’ and our reputation for fairness have long been regarded as the gold standard for even-handedness, and a hallmark of what is best about this country, but if these changes go ahead we will have a criminal justice system reminiscent of a third world country.

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